The Privilege of Kings Becomes That of Presidents

Kurt Eichenwald And Michael Moss - NY Times - January 29, 2001

The presidential power to pardon is enshrined in Article II of the Constitution. Kings had the ability to grant mercy to those convicted of crime; the framers wanted their leader to enjoy the same ability. But unlike other powers granted to elected officials, this one came with no restrictions.

"To most lawyers, it seems very strange," said Jerome P. Mullins, a criminal lawyer in San Jose, Calif., who is an expert on the pardons system. "It doesn't fit into the checks and balances concept. It appears to be almost an unfettered power."

A president who chooses to grant executive clemency can do so in several ways. Applicants can be pardoned, allowing them to recover a variety of rights, from voting to getting a hunting license, which were eliminated by a felony conviction. Such pardons are most frequently offered to people who have been convicted and served their sentences.

A president can also show mercy to imprisoned felons by granting a commutation, meaning that the sentence being served is reduced in whole or in part.

Overseeing much of the paperwork and investigative effort in the clemency process is the office of the pardon attorney at the Justice Department. There, a small staff of lawyers reviews and, working with F.B.I. agents, investigates applications for clemency.

Ultimately, their recommendations are passed to the White House, where the president makes the final judgment on who is deserving. The president can choose to ignore every recommendation made by the pardon attorney.

Pardons were granted in the nation's first 200 years with little significant criticism.

Then, in 1974, President Gerald R. Ford pardoned President Richard M. Nixon for his role in the Watergate scandal, unleashing widespread criticism.

The uproar did not stop President Ford's successors from occasionally pardoning people who pleaded their case directly to the White House, government officials say.

"There were pardons that were given that were never requested or they were given so late there was no way we could do an adequate investigation," said Dean Paisley, who worked as an F.B.I. supervisory special agent in the unit that handled pardons in part of the Carter and Reagan presidencies.

In those instances, he said, the agents had as little as five days to conduct their reviews.

President Bush gave only 74 pardons in his four years in office. Still, there were cases that attracted the attention of the White House. Margaret Love, a former head of the Justice Department's pardon office, said that, in the last days of the first Bush administration, there were as many as a dozen cases that the White House wanted examined. All were processed fully by the Justice Department.

The most contentious of these were the pardons for six former executive branch officials who faced trial or had already been convicted on charges of criminal activity related to the Iran-contra affair. The six included Caspar W. Weinberger, the former secretary of defense in the Reagan administration.

The decision effectively shut down the efforts of the Iran-contra special prosecutor, who at the time considered Mr. Bush himself to be a subject of the investigation.

Among the critics of the move: President-elect Bill Clinton. "I am concerned about any action which sends a signal that if you work for the government, you're above the law," Mr. Clinton had said.

Four years later, at the first presidential debate in the 1996 campaign, Senator Bob Dole tried to corner President Clinton on his potential use of clemency powers. Did Mr. Clinton intend to pardon anyone implicated in the Whitewater investigation?

"I will not give anyone special treatment," Mr. Clinton replied, "and I will strongly adhere to the law."